People v. Mosley

88 A.D.2d 520, 450 N.Y.S.2d 17, 1982 N.Y. App. Div. LEXIS 16654

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1982
• Status: Published

Opinions

— Judgment of the Supreme Court, Bronx County (Loguen, J.), rendered January 3,1980, convicting defendant, upon his plea of guilty, of two counts of robbery in the first degree and two counts of robbery in the second degree, and sentencing him to four concurrent indeterminate terms of imprisonment of two to six years, reversed, on the law, the sentence vacated and the matter remanded for resentencing in a manner not inconsistent with the following. Defendant pleaded guilty on October 25, 1979 in Bronx County to two counts of robbery in the first degree and two counts of robbery in the second degree. Before this plea, defendant had pleaded guilty to attempted robbery in the second degree in New York County but had not yet been sentenced for that crime. However, when defendant appeared for sentencing in The Bronx, he had already been sentenced in New York County to an indeterminate term of four years. As noted, this sentencing in the New York County proceeding had taken place, after the plea in The Bronx but before sentencing. The court denied an application for youthful offender treatment, stating “under the law as it now exists I cannot give [the defendant] youthful offender treatment.” This was in error. “[Eligibility for youthful offender treatment must be met at the time the conviction is entered, not at the time when the judge at sentencing exercises his discretion to grant or deny it.” (People v Zepada, 87 AD2d 747,748.) Thus, in the case at bar, the eligibility for youthful offender treatment was determined upon defendant’s conviction. The defendant was eligible unless, inter alia, he was previously convicted and sentenced for a felony (CPL 720.10, subd 2, .par fb]). Therefore upon his sentencing in Bronx County, the defendant was eligible for youthful offender treatment, since upon his conviction, he had not been convicted and sentenced on the other felony in New York County. (People v Zepada, supra.) The sentencing Judge, upon this remand, will, of course, retain the discretion to grant or deny youthful offender treatment in accordance with the provisions of CPL 720.10 (subd 3) and 720.20. We emphasize that the plea bargain made with the sentencing court, as noted by the dissent, was to consider the defendant for youthful offender treatment. Accordingly, since the sentencing court will now have an opportunity to so consider such treatment for defendant, defendant should not be given an opportunity to withdraw his plea. Concur — Sullivan, Ross, Silverman and Asch, JJ.